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Tuesday, September 04, 2007

The Balance Between Theory & Practice

Alexandra Lahav had a thoughtful post last month about the balance between teaching theory and practice in the first year – “what is the animating theory of the law school curriculum?” she asked. Alexandra's Post. She differentiated between what she referred to as the “skills” thesis and the “proficiency” thesis. Bill Araiza sort of touched on the same topic from a different angle in his post “Good classes and bad” when describing the need to approach class as a teacher, not a scholar. Bill's Post.

I thought I would follow-up, because these posts perhaps raise a broader, yet related, issue. Recently, the balance between theory and practice in law schools has received markedly more attention (see the much-discussed Carnegie Foundation’s Report on Educating Lawyers). Many schools realize they do a disservice to their students if they don’t prepare them adequately for law practice. Several leading organizations have called for law schools to refocus and reform their curriculums to emphasize professionalism and professional skills. Students – more than ever approaching law school as critical consumers – demand greater help in preparing for the Bar Exam and succeeding in practice. For sure, this is nothing new. But the calls seem to no longer be falling on death ears. We may be on the brink of profound changes in (or at least ways in thinking about) American legal education. [For those who have not read it, the Carnegie Report has some wonderful insight into the state of legal education.] Carnegie Report.

Yet, surely this refocus is in tension with an opposing trend. As law schools are pressured to better prepare students to practice law and “hit the ground running,” my sense is the hiring market has turned increasingly in the other direction – at least for doctrinal professors. [cont....]

Having more than a few years of practical experience on your resume can be deadly for someone entering the teaching market. Skilled practitioners (even those with as little as 6-7 years of experience) are often viewed with suspicion – their commitment to scholarship presumed to be wanting. The most sought after new hires often have advanced degrees in other disciplines, with little to no legal experience. Unless you obtained your J.D. from an Ivy League law school, your chances of entering the market without an advanced degree also is slim. Interdisciplinary or “theoretical” scholarship is viewed as weighty, while characterizing scholarship as “practical” may be the worse criticism one can hear. Treatises, practice guides, and books at many schools are entitled to almost no weight in tenure decisions. Legal publications in bar journals and popular press are often scorned, while non-legal publications are severely discounted. Legal writing and clinical faculty at some schools are still viewed as second-class citizens. And a distinguished legal career is often worth less than one publication with a leading law review. Courts perennially complain that legal scholarship is no longer helpful. The division between academia and practice seems as great as it has ever been.

My post is not to question whether theoretical research is important (it is). Or whether teaching our students professional skills is necessary (it is). But law schools may be in for a challenge when attempting to balance these two apparently competing goals. As law schools are increasingly pushed to offer a greater range of upper-division courses that focus on skills and professionalism, it seems somewhat ironic that academia is more than ever filled with professors that are out of touch, and comparatively in the worst position, to teach those skills. Many law schools may be in for a challenge. Will hiring practices have to change? Or, at minimum, will the opportunities for adjuncts have to expand dramatically? For a few schools (think Harvard, Yale), it won’t be an issue. Their graduates will find jobs no matter what they are taught (or not taught). But for the rest of the law schools – they can ill afford to fall behind in either category (churning out the best scholars possible, while preparing their students with as much practical skills training as possible). If the balance can not be achieved, what gives way: the teaching of practical skills, or what we value in scholars? Thoughts?

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» Practical Training from Legal Profession Blog
Posted by Jeff Lipshaw Austen Parrish (right, Southwestern, which has the coolest faculty pictures) has a take over at PrawfsBlawg on the apparent divergence between the desire, on one hand, for more practical training of lawyers (doing a better job [Read More]

Tracked on Sep 5, 2007 8:15:07 AM

Comments

"For sure, this is nothing new. But the calls seem to no longer be falling on death ears. "

I believe it is deaf ears.

Posted by: MT | Sep 4, 2007 3:26:00 PM

Oops. Yes, of course - you're right. Great to see people reading the post though. I'm sure there are other typos too.